Plaza v Parra

[2023] QMC 13

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Plaza v Parra [2023] QMC 13

PARTIES:

LEONARDO PLAZA

v

JUAN EMILIO CANISING PARRA

FILE NO/S:

M1383/23

DIVISION:

Civil

PROCEEDING

Application filed 14 September 2023
for summary judgment and to strike defence

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

5 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2023

MAGISTRATE:

A/Magistrate Janelle (Payne) Boegheim

ORDER:

The plaintiff’s application for summary judgment,filed 14 September 2023, is dismissed.  1.     

Paragraphs 4(c), 6(c), 9(b)(i) and 10(b)(i) of the Defence filed 9 August 2023 are struck out under
r 171(1)(a) and (b) Uniform Civil Procedure Rules 1999 (Qld).     2.     

The balance of the plaintiff’s application, filed 14 September 2023, to strike out the Defence filed 9 August 2023, is dismissed.3.     

The defendant is directed to file and serve any amended defence by 4pm on 19 December 2023.4.     

I will hear the parties in relation to costs.5.     

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the plaintiff applies for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) - Where plaintiff and defendant co-sureties of guaranteed debt – where dispute as to whether co-surety or instead the primary debtor paid the creditor the guaranteed debt – whether the defendant has no real prospect of successfully defending the relevant part of the plaintiff’s claim – whether there is no need for a trial of the relevant part of the plaintiff’s claim

PROCEDURE – CIVIL PROCEEDINGS – PLEADINGS – STRIKING OUT – where the plaintiff seeks, in the alternative, an order that all or certain paragraphs of the amended defence and counterclaim be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) – whether application to strike out should be granted for all or part of the defence.

Uniform Civil Procedure Rules 1999 (Qld) rr 171, 292

CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227

Lavin & Anor v Toppi & Ors 254 CLR 459; [2015] HCA 4

COUNSEL

De Waard, M of Counsel for the plaintiff
Delaney, A (sol) for the defendant

SOLICITORS

Mills Oakley, for the plaintiff
Delaneys Lawyers, for the defendant

Nature of the application

1. By Application filed 14 September 2023, the plaintiff seeks summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). In the alternative, the plaintiff seeks an order that all, or certain paragraphs[1] of, the Defence be struck out pursuant to r 171 of the UCPR.

   [1] Paragraphs 2,3,4,5,6,7,9,10,11.

The parties’ material

1. At the hearing, the plaintiff, who appeared by Mr De Waard of Counsel instructed by Mills Oakley, relied on his Application and an Affidavit of the plaintiff both filed 14 September 2023, along with the pleadings filed to date.[2]

   [2] Court documents 1 to 4.

1. The defendant, who appeared by his solicitor, Mr Anthony Delaney, relied on an…